UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

PUSHPA BISARYA, Appellant,

v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DE

- 0752

- 13

- 1939

- I

- 1

DATE: August 19, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Pushpa Bisarya , Ballwin, Missouri, pro se. Moira McCarthy , Phoenix, Arizona, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement appeal for lack of jurisdiction

. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following po ints and authorities, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final dec ision. 5 C.F.R. § 1201.113 (b).

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant filed a Board appeal alleging that her retirement from the position of Medical Officer (Emerge ncy Medicine) was involuntary. See Initial Appeal File ( IAF ) , Tab 5 at 1, Tab 10 at 16 , Tab 14 at 5

. The appellant alleged
that she had no choice but to retire after her s upervisor gave her a minimally
successf ul performance review and threatened her with a 4

- month reassignment to a unit where she would have to perform work that she was not hired to do under the supervision of a P hysician’s A ssistant with whom she had a poor working
rela tionship. See IAF, Tab 1 at 1

- 8 , 113

- 14

. T he appellant claimed that her supervisor’s actions were in retaliation for her refusal to lend her $200 for her daughter over a year prior to the incidents at issue in the instant appeal. Id.

at 5

- 6 , 113 ; IAF, Tab 14 at 2

- 3

. ¶3 After holding a status conference , the administrative judge assigned to the

case at the time issued an order which advised the appellant that she would not be
entitled to a hearing unless she made nonfrivolous allegation s that brought her3

retirement within the B oard’s jurisdiction

. 2 See IAF, Tab 5 at 2

- 4

. Further, the order explicitly set forth the pleading requirements to establish involuntariness on
the basis o f coercion

. Id. at 2

. After providing the parties with the opportunity to provide evidence and arg ument regarding the appellant’s claim, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction without holding a hearing . IAF, Tab 15, Initial Decision (ID) at 1, 7. ¶4 Th e ap p ell a n t h a s f ile d a t i m e l y pe t iti o n f o r review

. Petition for Review ( P F R ) F i le , T a b 1

. Th e a g en c y ha s re sp ond e d i n o pp o si t io n t o th e pet i ti o n f or revi e w

. P F R F il e , T a b 3

. The a ppellant has not made a nonfrivolous allegation that her decision to retire was coerced

. ¶5 The appellant bears the burden of proving by prepond erant evidence that the

matter s he is appealing is within the Board’s authority to review. Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 11, aff’d , 469 F. App’x 852 (Fed. Cir. 2011) , cert. denied , 133 S. Ct. 414 (2012) ; 5 C.F.R. § 1201.56 (a)(2)(i). A retirement is
an actio n presumed to be voluntary and not appealable to the Board unless the appellant presents sufficient evidence to establish that the retirement was obtained through duress or coercion , or shows that a reasonable person would have been misled by the agency. Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392 , ¶ 10 ( 2008)

. An appellant is entitled to a jurisdictional hearing only if she makes nonfrivolous allegations th at her
retirement was involuntary

. Id. , ¶ 11. ¶6 T he doctrine of coercive i nvoluntariness is a narrow one.
Brown , 115 M.S.P.R. 609 , ¶ 10 (quoting Staats v. U.S. Postal Service , 99 F.3d
1120 , 1124 (Fed. Cir. 1996) ) . Thus, an employee must show that the agency effectively imposed the terms o f her retirement, that the employee had no realist ic
alternative but to retire, and tha t the employee’s retirement was the result of

2 The case was subsequently reassigned to the administrative judge who issued the initial decision. IAF, Tab 9.4

improper acts by the agency. Id. The issue is whether, considering the totality of the circumstances, the employee’s working conditions were ma de so difficult that a reasonable person in the employee’s position wou ld have felt compelled to
retire

. Id

. ¶7 O n February 7, 2013 , the appellant’s supervisor met with the appellant to
discuss her 2012 performance appraisal , and she provided the appellant with a copy of the evaluation that indicated a rating of minimally successful . IAF, Tab 1
at 23

- 29 , Tab 12 at 13

- 15 . The appellant claimed she had no notice that there were any issues with her work, thus , she alleged that it wa s “ obvious ” that her supervisor had ulterior motives for the poor rating. IAF, Tab 1 at 2

- 3 . The appellant’s supervisor also detailed the appellant to Express Care within the Emergency Department for a period not to exceed 120 days, effective March 1,
20 13 , through June 28, 2013

. Id. at 22 ; IAF, Tab 12 at 15

. The appellant alleged
that her per formance appraisal and reassign ment were reprisal for her previous
refusal to lend her supervisor $200. IAF, Tab 1 at 5

- 6. ¶8 On June 20, 2013, the appellant’s supervisor met with the appellant and her union representative

. Id. at 76. Subsequently, the appellant’s supervisor revised the appellant’s performance appraisal and gave her an overall rating of fully successful. IAF, Tab 1 at 79, Tab 12 at 15

- 16. The appellant’s rating remained minimally successful only in one critical element. IAF, Tab 1 at 80, Tab 12 at 15. In addition, her supervisor gave her a letter of reference. IAF, Tab 1 at 85,
Tab 12 at 16. ¶9 The appellant’s supervisor did not reverse her de cision to assign the appellant to Express Care. IAF, Tab 12 at 16. As explained by the appellant, working with the D irector of Express Care in the past had been “very challenging” and she was “appalled” that she would have to work with him

. IAF,
Tab 1 a t 3

. The appellant alleged that her supervisor forced her to retire because “[e]ither I work with the man who already made my life hell earlier and get fired
or I retire

. . . . [He]

. . . absolutely surely would have played game [s] with me5

and g et me fired.” IAF, Tab 14 at 5. The appellan t stated that, in 2007, she was hired solely to work in the emergency room and not in Express Care

. See IAF,
Tab 1 at 3

- 4. ¶10 The appellant alleged that during the June 20, 2013 meeting she asked her supervisor if she remembered asking the appellant for $200 for her daughter and that her supervisor stated that she did remember asking for the loan. Id. at 5. In her declaration, the appellant stated that her supervisor asked for the loan in January 2012. IAF, Ta b 14 at 1. However, her supervisor indicated in her
declaration that she never requested that the appellant give her daughter $200 or any amount of money. 3 IAF, Tab 12 at 13. ¶11 On review, the appellant contends that the reasonable person in her position
would have been coerced to retire. See PFR File, Tab 1 at 2

- 3. In addition , the appellant states that she was discriminated against based on her race and color.
Id. at 2. The administrative judge fully considered th ese contention s below and correctly determined that they did not establish that the appellant ’s ret irement
was coerced. ID at 3

- 7

. ¶12 T he appellant’s contention that she retired because of her performance appraisal and in anticipation that she would be miserable working in Express Care
while on tem porary assignment there for 4 months does not show that he r retirement was involuntary. The doctrine of c oerced involunt ariness is not implicated if the employee retires because s he does not like a new assignment or a transfer, even if it make s continuation in the job so unpleasant that s he feels s he
has n o option but to retire

. Conforto v. Merit Systems Protection Board , 713 F.3d
1111 , 1121

- 22 (Fed. Cir. 2013) (citing Staats , 99 F.3d at 1124 )

. A n employee is not guaranteed a s tress

- free working environment. Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000). Dissatisfaction with work assignments, a

3 The appellant’s supervisor indicated that in July 2010 she accepted two payments of $200 each for tutoring services that she provided to the appellant. IAF, Tab 12 at 13.6

feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compel a reasonable person to resign. Id

. ¶13 A l though the appellant’s supervisor gave the appellant a minimal ly successful rating under the critical element of productivity and cost, there is no
evidence that she threaten ed the appellant with disciplinary action. Moreover, the appellant’s supervisor stated in the appellant’s letter of reference , “I recommend
her as a reliable doctor

. ” IAF, Tab 1 at 85. A reasonable person in the appellant’s position would have contested the performance appraisal, rather than
retire

. See Brown , 115 M.S.P.R. 609 , ¶ 15 (instead of retiring based on her speculation that a disciplinary act ion might occur in the future, th e appellant clearly had the option to conte st an action she thought was invalid if that occurred)

. In fact, the appellant successfully challenged her original appraisal

. ¶14 On review, the appellant alleged that her supervis or changed her statement regarding the alleged $200 loan request. PFR File, Tab 1 at 2. I t is immaterial
whether the appellant’s supervisor asked for the alleged $200 loan . Even if the appellant’s supervisor were motivated by reprisal for the denial of the loan, the appellant still has not shown that a reasonable person in her position would
retire. 4 ¶15 The appellant claim s that she was discriminated agai nst based on her age, gender, national origin , and race and color. In the context of an alleged involuntary retirement, t he Board must consider discrimination allegations only
insofar as they relate to the issue of voluntariness. Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 12 (2009). In the instant case, t he appellant’s allegations of discrimination are vague. See IAF, Tab 1 at 60 , 11 3 , Tab 14 at 4 ; PFR File, Tab 1 at 2

. Claims of discrimination that are not accompanied by allegations specifying particular acts of discrimination are insufficient to support a prima facie case of involunt ariness. Tripp v. Department

4 The appellant did not claim reprisal for whistleblower activity and therefore the Board does not have jurisdi ction under the Whistleblo wer Protection Enhancement Act

.7

of the Air Force , 59 M.S.P.R. 458 , 461 ( 1993)

. Further, even assuming that the agency’ s alleged actions were discriminatory , the appellant failed to show how
those actions coe rced her retirement

. See id. Without more, a claim that the agency’s actions wer e motiv ated by discrimination i s not sufficient to establish Board jurisdiction over an alleged constructive removal

. Conforto , 713 F.3d at
1120

. We agree with the administrative judge that the Board lacks jurisdiction

over the appellant’s retirement ; thus, the Board lacks jurisdiction over the appellant’s discrimination claim.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. Yo u must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the da te of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to ap peal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 2 7, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional information is available at the court's website , www.cafc.uscourts.gov

.8

Of particular relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation for yo ur court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants bef ore the court. The Merit Systems
Protection Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board